Posted
by
timothy
on Thursday December 03, 2009 @11:05PM
from the not-open-like-all-the-french-consoles dept.

Hatta writes with a snippet from MaxConsole: "Nintendo has today lost a major court case against the Divineo group in the main court of Paris. Nintendo originally took the group to court over DS flash carts, however the judge today has ruled against Nintendo and suggested that they are purposely locking out developers from their consoles and things should be more like Windows where ANYONE can develop any application if they wish to."

This is a precedent I approve of, and would like to see the trend continue in the consoles market - if we make access to the tools easier for game devs, we'll end up with better games... win-win so far as I can see.

A 100:1 ratio of junk to gold with 100 games on the market is a far different environment than a 100:1 ratio of junk to gold with 1,000,000 games on the market. In the first case there's only 1 good game out there, in the second there's 1000. Same ratio, far different result. All you need is the ability to ferret out those gold game from the junk, which is entirely possible, and then the more games on the market (with the same or better ratio) the better.

Given that gamers are now largely in their 20's and 30's, money is no longer the big issue

The big issue is time. When games are 40 and 50 hour magnum opuses, it says a lot.

A bigger issue with time is online. when games like Borderlands and Modern Warfare 2 are largely geared for online play, you can't just simply put one down and pick up the other later and get the same experience.

The entire reason that Nintendo is so selective in which games it licenses is because of the flood of games that came out for all consoles in the 80s, and the video game crash shortly after. Companies like Quaker Oats were actually trying to publish games. The market became so over-saturated with games that the public became disgusted with them.

When nintendo finally released the Famicom in the US they had to market it as a home computer rather than a video game system due to the negative connotations that 'video game' still had. You'll notice that every legitimate game that came out for nintendo and super nintendo ( I stopped looking after that) came with the nintendo seal of approval. That's because they started making certain that only reputable publishers were releasing games for their system, to keep their reputation intact. There's a lot more about it if you search for the video game crash of 1983 http://en.wikipedia.org/wiki/North_American_video_game_crash_of_1983

Opening up the console to anyone who wants is definitely not guaranteed to increase the quality of games. In fact, history tells us that the exact opposite will happen. But hey, who knows! History doesn't repeat itself all that often, right?

As someone who actually was part of the video game crash, let me offer you a different perspective. If Atari had been able to legally keep out competitors, the best Atari 2600 games would never have seen the light of day.

The tactic that Nintendo eventually used had been considered by the industry earlier, but was not adopted because it was thought to be illegal. That's the way it should have stayed.

Right now, anyone can publish games for the PC platform. And there's a shit load of them, many mediocre, some not. That doesn't really hurt the PC market. Right now, Nintendo is filled with shovelware with the Wii (and I own a Wii and no other current-gen consoles, so I am allowed to say that).

The reason Nintendo took the stance it did was so it could profit more by charging companies $$$ to win its seal of approval. Nintendo wouldn't directly profit off 3rd party games. If the companies h

> The market became so over-saturated with games that the public became disgusted with them.

Not quite. At the lowest point after the crash, members of the public were no less enthused about them than they were a year or two earlier. It was MERCHANTS who wouldn't touch videogames with a dirty twenty-foot pole, let alone sell them.

I've noticed that the perception that videogames "died" after "the crash" is strongest among people who were already adults when it happened. For those of us who were in middle school, the "crash" was an irrelevant abstraction. We got C64s, then Amigas, and were largely oblivious to the perception that videogames had somehow "gone away". Most of us had more games than we knew what to *do* with, and probably had more game discs laying on the floor around our beds than the total number of unique game cartridges for the Atari 2600, Intellivision, Atari 5200, Odyssey 3, *and* Colecovision that had ever existed since the dawn of the videogame era. If videogames went away in 1983, someone forgot to tell us;-)

I agree with your point, but should mention that when people talk about the "game crash", they usually refer to the gaming-only consoles, not general purpose computers.Computers have never died, and whenever there's a computer, there's games.Also, to the best of my knowledge, when talking about sales figures, videogames in general did indeed take a major blow.

We're currently in a financial crash, but that doesn't mean that money no longer exists or that there are no millionaires or even billionaires any mor

While i agree with what you said (I had a VIC20 at the time. remember the ads with the Shat?) I would say that what caused the "crash" more than anything was the same shit that caused the Dotbomb-pure greed. I remember stores lining their shelves with every. single. 2600 cart they could get their little hands on, with visions of $$$ in their eyes. The stores were literally piled high with so many different games from so many different companies that there was simply no place to go but down.

Heck different times, the PC has been open since 1982, did it hurt the game quality, no.Back then games were rather cheap to produce, all you needed was one person. Nowadays it is almost impossible for a single person to do a decent game. The people also are more educated about games, so the market has split into high profile/independend/ and hobbyist releases at least on the PC.

The consoles are picking up those developers slowly they have not covered yet with their markets and lower entry barriers, Nintend

If this is done against the wishes of the console-maker, than you can claim, that they are "winning" too. However unreasonable their wishes may be, they ought to be respected, period. They created the product, they licensed their use to others (of whom nobody was unduly coerced into agreeing) on certain conditions.

You — or this judge — then coming around and saying, you know, we think, those conditions should be changed, and we are going to force you to change them, is just not how things ought to be done in a free society.

If this is done against the wishes of the console-maker, than you can claim, that they are "winning" too. However unreasonable their wishes may be, they ought to be respected, period. They created the product, they licensed their use to others (of whom nobody was unduly coerced into agreeing) on certain conditions.

You — or this judge — then coming around and saying, you know, we think, those conditions should be changed, and we are going to force you to change them, is just not how things ought to be done in a free society.

But its completely OK for a console maker to force me NOT to do things with something I outright purchased with my own hard earned money?
Since when should their wishes be law?

For example, suppose that someone produced an M-rated game with adult content for the Nintendo Wii console and marketed the game as "Wii Wanker". Wouldn't that harm the family-friendly image that Nintendo has so carefully cultivated and protected? If it does, shouldn't Nintendo at the very least be compensated for you harming their brand?

Only in-so-far as the term "Wii" is trademarked, and thus Nintendo could simply sue.

But as long as the term "Wii" isn't included in the title, frankly, I don't see what the

> If this is done against the wishes of the console-maker, than you can claim...

What in the wide wide world of sports does the 'wishes' of the console maker matter? I have never understood how this came to be. I though we (here in the US at least) had already had this fight. Atari v Activision supposedly settled this matter. Atart couldn't decide who could or could not sell software for their system. Case closed, the Supremes had SPOKEN.

Then the video bust came and a few years later Nintendo introduced the NES and it was like nothing had ever been decided, they blessed your title or you didn't ship, and f**k the Supreme Court if they don't like it. And they got away with it and it has since been thus on the console market and now the handset market, the home video market and if the major players ever thought they could get away with it on the PC as well.

And now on the console (but especially Nintendo fanbois) and with Mac the users have been abused so long they have fscking Stockholm Syndrome or something and not only accept it they LIKE getting hosed by their vendor now.

Clue time. When I BUY a computing device off the shelf I BOUGHT it, I didn't LICENSE it and I couldn't give a good god damn what the vendor of that product WANTS me to do with it. If I want to hack it up and use the individual components in a project I'll do that. If I wanna put NetBSD on it thats exactly what I'll do and screw em if they don't like it.

Activision was the first group of game developers to think of making and selling games for a system created by someone else. Atari hadn't put any protections on the console. Hence, Activision (and everyone and their uncle) could sell games for the Atari 2600 with impunity, and the market was flooded with crap.

Tengen (a division of Atari) tried this with the NES. However, Nintendo *had* put protections on the lockout chip. Tengen acquired a schematic of the chip under false pretenses, and released their games bypassing the lockout chip. Nintendo sued, and it was settled out of court without precedent being set.

Accolade tried this with the Genesis. That one, Accolade one, on the strength that they had properly reverse-engineered the lockout protection, and that reverse-engineering for interoperability was legal.

Then came the DMCA, which was a monkey's attempt to understand the internet, and makes basically everything illegal. But you get the idea. Basically, the courts *had* been ruling that any software company can put out for any system, so long as their software didn't break any laws or patents to do so. However, software these days is intricate enough (and the cryptography strong enough) that no company large enough is willing to do so. Also, they would lose marketing / favor with the console makers, who retain a lot of promotional and other sway.

Hold on, as an OWNER of one of these flash carts, I have to say Nintendo is pretty justified in trying to stop these things from selling legally. Have you seen or used these flash carts? I would guess about 90-95% of them are used to pirate DS games, while the other 5-10% are used to emulate older games (NES, GBA, etc.) and play media.

There is a card out that purposely does not attempt to play commercial games called the iPlayer card. This flash cart reads music, video, pictures, and so on along with homebr

But that's the thing, Pirate Bay or things like LimeWire have been found to be illegal in the way they were operating, since they're trying to make money off the fact that they offer a service to steal things. What helps in their defense is that oftentimes it is very difficult to prevent copyrighted material from leaking on without just complying to DMCA notices automatically.

However, with the DS flash carts, I believe the makers have to go through EXTRA EFFORT in order to enable pirating, and definitely in

I am relatively sure that Nintendo never licensed me to do anything. I *purchased* a piece of hardware from them. It is now mine to do with as I please, within the confines of the law. That law being set by the legislature and later by judges, as this judge is doing.

If this is done against the wishes of the console-maker, than you can claim, that they are "winning" too. However unreasonable their wishes may be, they ought to be respected, period. They created the product, they licensed their use to others (of whom nobody was unduly coerced into agreeing) on certain conditions.

This is not a question about making more accessible tools for game developers. This is about turns the entire console game development economic model on end.

Of Course Nintendo is trying to "lock out" developers as the French court suggested. Console manufacturers survive by being the gatekeepers between developers and the public. In other words Nintendo (and Sony and Microsoft) make their money by taking a cut of each game sold. What do they do with this money? Well...

Actually, it is the distribution of the WGA cracks that will get you hounded. If people only developed these cracks for their own use then Microsoft would bother trying to stop them.

Similarly, Nintendo wouldn't care about the DS flash cartridges if people only backed up games to which they physically had access, because that kind of piracy doesn't have a great impact on sales. But when the ROMs are so easy to find on the net, it has got to make them pay attention.

How about people having to replace a cartridge because the specific damage isn't covered by warranty? Not much sales, but I dare bet it's more than "not any". Rather it'd be "not a great impact", which is coincidentally what the GP said.

When I said "only backed up games to which they physically had access" I included games that were owned by friends. This casual piracy would obviously reduce sales (especially in clusters like schools), but nowhere near to the extent allowed by being able to easily download every game every made from a stranger across the globe.

Perhaps if Nintendo gave us hardware that was easier to back up, they wouldn't have these issues.

It's not really Nintendo's responsibility to do this. Back in the GBC and GBA days, flash cartridges came with cables to connect to PCs which enabled you to rip games. Modern DS ones don't seem to have this. They are designed to only be used with development kits and Internet download.

Perhaps if Nintendo gave us hardware that was easier to back up, they wouldn't have these issues.

It's not really Nintendo's responsibility to do this.

That's questionable and luckily questioned constantly: why the content has to be bound to a medium?

As sole distributor of DS games they might be made responsible with direct positive impact to consumers.

As video game market widens (and we have in greater part Nintendo to thank for that), their argument that consoles are their own proprietary technology and intellectual property would be loosing weight. It is not uncommon for state to force commercial companies to open up widely used market-enabling t

The FSF doesn't sue over GPL violations that relate to the Linux kernel. They don't have standing, as they do not hold any copyrights over that code. Now the GNU toolchain that typically lives on a Linux system - that they can sue over.

Kernel developers, however, do have standing, and hence can sue over copyright infringement.

Actually entities have occasionally (though it is rare) been sued by the FSF for doing "anything" with Linux; violating the GPL.

Actually those entities have not been sued because of the type of application they developed or who they were. Those entities have been sued because they violated the license of the code they used but didn't develop themselves -- an entirely different thing.

Actually the XBox is also very easy to develop (XNA anyone?) The only real restrictions there are that if you want your game to go out to everyone as a full game on Live, you have to pass a certification process to ensure you abide by the rules for how apps are supposed to behave. But the tools are all there and MS does a good job of encouraging their use.

Yep. MS doesn't really lock down Windows at least from most people's way of thinking. The only ways it is "locked down" are:

1) The source isn't available to anyone who wants it. Contrary to Slashdot beliefs, it isn't a huge secret. There are organizations like governments, universities, and such that have copies of it. However any person who wants it can't get access to it.

2) They want you to pay for every copy. You are not legally allowed to distribute it to anyone you wish, each copy of it needs to be paid for.

That is really it. Development is unrestricted. They have documentation available on how to do whatever you'd like. They also don't bind it to any given hardware or function. While there are some limits imposed by the basic design (like you need to run on an x86, x64 or IA64 processor) they have the resources for you to develop drivers for the platform of your choice.

They really don't limit you much at all, at least not from a normal user's perspective. No, they don't give you the source but if you aren't a programmer, and most people aren't then it doesn't matter at all.

Also, as a practical matter, I find many people who whine about open source really just want to not pay for software, but won't admit that is their main motivation easily.

And even as a programmer having the source to your OS isn't all that useful or needed. I've got both linux and windows machines, and I do most of my development on windows, because the end user doesn't care if your code is perfectly integrated with the source code of some distro of linux, they care if it runs on windows. And with the current trend towards cross-platform code having the OS code is only going to get less and less important to programmers.

I completely agree. I was simply pointing out that anyone who isn't a programmer automatically doesn't care because it is useless to them, and that accounts for probalby 99.99% of the population or more. You are correct that the number that care is even less than that. Not only do you have to be a programmer, but you have to have the time and the reason to wish to use the code for something before it would matter at all to you. It is an extremely limited set of people who it matters to. While there's nothin

Just a side note, it is also possible for individuals who wants the Windows source code [microsoft.com] to get it. They simply have to become an MVP (most valuable professional) and be in good standing and sign a few NDAs. I consider that as any person who wants it *bad enough* can get legal access to it.

Also, as a practical matter, I find many people who whine about open source really just want to not pay for software, but won't admit that is their main motivation easily.

You're kidding me, right? How can you be on Slashdot in 2009 and not at least be peripherally aware of the positives of open source beyond cost? I won't deny that cost arguments exist, but to call that the mainstream motivation for open source is a little beyond plausibility. If you just want something for free, pirate it already, the consequences are usually slim to none in the end-user world.

There are real, practical benefits to open source for the end user. Heck, I'm a programmer by trade but even

Windows might not be Open Source and MS business practices may be something to be desired, but they are an open platform. And when you look at the platforms that were around when Windows came to light, there really wasn't much that was that successful where just anyone could develop for it.
Even today, companies like Apple, Nintendo, Amazon, Sony, (the list is rather lengthy) want to sell you a solid product. They want everything to be an appliance to you, like a dvd player or your tv.. where you don't notice, nor care about the software on it.
An article a while back was describing why Windows Mobile and Android will, in the long run, destroy Apple in the phone market, and in the end, it will be because of the availability of applications for them. Apple and Nintendo and Amazon and so forth, want to be the gatekeepers of software and content, and frankly.. looking at the success of MS on the desktop, that approach doesn't seem to be a successful one.
Video game systems will be the last bastion of this mentality though, i can promise you that.

Apple and Nintendo and Amazon and so forth, want to be the gatekeepers of software and content, and frankly.. looking at the success of MS on the desktop, that approach doesn't seem to be a successful one.

This doesn't make sense. You identify loosely that Nintendo and Amazon (even Apple but that's rarely the case) are in the content business, and yet you compare it with MS on the desktop which is another market altogether. Ms on the desktop is in the technology business, which has nothing at all to do with the content business, and what works in the technology business (like vaporware) doesn't always work in the content business, like MS learned the hard way.The XBox division of MS was a far better and far m

Maybe its time that Nintendo opened up the market to game developers such as those currently targeting the iPhone and the Android platforms. Yes they will loose profits, especially when the DS is still working so well, but maybe forcing them to open up will encourage more innovation?

Nintendo open? Their WiiWare approval process makes the iPhone development process look easy by comparison, especially when you realize that to be a developer you have to pay a $2,000 fee. Heck, they censored crosses in NES games!

I would not call the iPhone platform "open" in any sense of the word. The software is proprietary, you have to use Apple's tools, and you can only distribute your application* if Apple gives you the go-ahead.

*I'm not counting jailbreaking and alternative locations here. Apple disables this kind of thing by default, so your users will be required to take extra steps that complicate things for them both now and in the future.

You really shouldn't have to even say that, as jail-breaking is just the name for modding being used on the iPhone, and the point is comparing systems that need to be hacked for development vs. systems that are open for development.

Nintendo locked down the original NES for quality control. Crappy games where killing the video game market (see the Atari 2600, among many others). Over time, they've gotten used to subsidizing their hardware with licensing fees as well as game sales.

Opening the platform and losing that means less R&D money and higher hardware prices. That is quite a hole they've dug for themselves, let's hope they find a way out that makes everyone happy.

That is revisionist at best. Up until Activision started up from ex-Atari employees, all systems only had first party games. When Activision became the first third party game developer, Atari tried to sue them out of existence. Nintendo, coming after Atari, could see that third parties could make good games, and that MORE games made the system appear more attractive to consumers. They then came up with the idea of trying to use copyright and patents to force every developer to pay them a , and implement

You're missing the bigger picture: this isn't about indies, at least not for Nintendo. This is about the vast number of carts already shipping from major studios. If they don't need to license with Nintendo to legally produce those carts, they won't, and the slice of the pie Nintendo gets is severely diminished.

The iPhone development model might be a profitable direction to go, which we've seen with downloadable content systems on the consoles like XBLA and Virtual Console on the Wii. Nintendo and Mic

Used for developing and homebrew software, as well as just plain copying games.

Exactly, although it is the copying of games that gets the most use of these cards. The unfortunate part (for Nintendo) is that flash cartridges offer a much better experience for gamers, because you can download multiple games to one cartridge (so you don't need to carry around extra games). You also can get access to in-game menus to added functionality play in slow motion, change the screen brightness and I think even saving at any stage (although I might be wrong about that one).

It's like a SSD thumbstick that you buy in a store, except it plugs into the DS just like a game cartridge does, and you can put many, many games on it at once. You select the game you want to play through the flash cart's software on your DS.

I have one of these, and it's too easy to pirate games. It's really unfortunate... easy pirating is one of the things that brought Dreamcast to its doom. Maybe we'll still see Shenmue 3...:(

Having worked in the game industry, I can attest that this may not be the best solution. The current measures are in place to hoard revenue for Nintendo, Microsoft, and Sony, but a side benefit of this is usually higher standards of quality in the games (not content, but code...trust me, you'd be surprised). First party requirements for many of these new systems are very stringent and help, in many ways, to protect consumers and the products they buy. As it stands all games published for an Xbox 360, a PlayStation®3, or a Nintendo system must be tested and approved by the companies' own QA team. Does this catch all bugs and potential issues in a game before it hits market, hell no. It does, however, ensure that a lower number of games are released with game-crashing bugs, progression stoppers (bugs that leave a player unable to finish the game no matter what they do), and bugs that can damage the system's internal software. If the format is opened to anyone who can make a flash cart, etc., you will, most likely, begin to see a higher number of games with these show-stopping bugs hitting the market in the rush to lower standards in order to maximize profit.

Does one automatically follow the other, not at all. The chance, however, is a high one. Potential backlash from this could see a return of the "Nintendo Seal" type of licensing for other game companies for games that were actually published through the first party, which would cost more to pass through QA process and in turn raise the price of the game. Opening the field for other companies isn't a bad thing, but people will definitely have to be more careful as to what software they buy for their game consoles. With fewer first party blocks in place I would expect to see a game on the market within six months that at least corrupted system software. I've seen software like that in my job already, and the companies may not be willing to fix things like that on their own.

Systems that impose costs and delays in exchange for higher quality/safety arguably have their place. I'm quite happy, for instance, that the aircraft that is supposed to be taking me from Boston-Logan to London-Heathrow has been well vetted. Same goes for the anesthesiologist, and whatever curious compounds he is injecting.

Here, though, we are talking about video games running on cheap consumer hardware, in the era of the internet, where bad reviews and news can spread very quickly. I'll take the risk of having a glitched quest on level 15 if that is what it takes to avoid the system producer taking its pound of flesh. If the system producer wants to have an endorsement program, where compliant titles receive the smiley gold star of approval, that is fine by me. If the system producer wants to cryptographically enforce that endorsement program on hardware I have purchased, and own, they can take that idea and shove it somewhere anatomically implausible.

The current measures are in place to hoard revenue for Nintendo, Microsoft, and Sony, but a side benefit of this is usually higher standards of quality in the games (not content, but code...trust me, you'd be surprised)

You mean the fact that Star Ocean III managed to fail to work on some PS2s? (http://www.rpgamer.com/news/Q1-2003/030803a.html) the general bugginess of most games, etc. Yeah, they might have better code, but for $60+ I'd better hope it works with any software, from an iPhone app, to an OS, to a game.

I'd settle for a simi-buggy game for free compared to a $50 game with a few bugs.

If the format is opened to anyone who can make a flash cart, etc., you will, most likely, begin to see a higher number of games with these show-stopping bugs hitting the market in the rush to lower standards in order to maximize profit.

Yes, but with flash carts come patches and cheaper games. Yeah, I'd like a bug free game, but paying less for a game and g

Nintendo isn't necessarily worried about the quality of third party games on their system; they make a profit off hardware sales either way. With the iPhone, Apple has proved that people can perceive hardware as high quality despite an overabundance of shitty software.

The main problem to Nintendo is flashcarts make it ridiculously easy to pirate games. Almost too easy - it's far easier to lug around a tiny flashcart than 10 game cartridges. The loss in game sales affects their quality in the long run, and hence the system's chances of success.

Consoles make very little money on the hardware. In fact, some of them even take a loss. If you look at the money made through hardware sales, they'd really not be a worthwhile proposition. Way to risky given the meager returns when they succeed compared to other consumer electronics.

Where consoles make their money is games. Every copy of every game sold generates licensing revenue for them, because you need to be licensed to produce games. That's where the cash is. Game sales far outstrip console sales and the license fees they collect are little cost to them.

So, unlicensed development would be a real problem. Previously, it might not have been such a big deal. You could probalby strong arm a lot of retailers in to not carrying unlicensed games. Ok but now, those games could be sold over the Internet. You buy the game online, download it to your flash card and go. It would be rather easy to bypass Nintendo entirely.

Yes I realize people can and do use the carts to copy games but who really cares? All systems suffer from people doing that, back in the SNES days people did it with cart to floppy copiers. Copyright infringement is a fact of life on all platforms, and they do fine even so. Look at the PC, the one that is the easiest. It still has over double the games revenue of the biggest console platform.

The real concern for Nintendo is that they'd lose control on their platform and lose out on license fees.

You are correct but your point doesn't matter. It is true only because the vendors built their business model around something that should not be, nay that the US Supreme Court had already (supposedly) shot down. The world doesn't have to alter reality and everybody doesn't have to bend over to protect a business model that should have never existed.

So lets work to do away with it and force the console industry to adapt to a sane world. All it would mean is that this hardware generation would get stretched out another year or so until the next generation could be sold at a profit from day one.

Hasn't this argument been used before? Last I checked there was still no empirical evidence that pirating = less sales, and plenty of circumstantial evidence that it either correlates negatively with lowered sales (more pirating = more sales) or has no correlation at all.

Pirating does not automatically equate to less sales, no matter what the RIAA would have you believe.

Maybe they could update their software distribution model to match what consumers want? Hello, mp3 players, take 2. I gave it away, but I did have an R4 that I used for this very reason. I'm not going to lie about not pirating any titles, but I do have a *very* large legit library of DS games, and I was much happier playing them off of an 8 GB micro SD card instead of lugging around a bunch of carts.

The main problem to Nintendo is flashcarts make it ridiculously easy to pirate games. Almost too easy - it's far easier to lug around a tiny flashcart than 10 game cartridges.

There is a simple solution to this, sell people what they want, how they want it. Sell your own FlashCart and sell games over the internet with digital download to a flashcart (or a CD/DVD that can be used on a computer to download to a flash memory that is compatible with the flashcart). The market is basically saying that we want this, so they should start selling it that way...

And don't say that the DSi is what I am describing, because it most certainly is NOT. I want to be able to easily, and cheaply replace and or upgrade the memory within the device. Having 1GB built in is all and good as long as it has an expansion slot that takes normal micro, micro, or normal SDHC memory cards.

Not as full as the iPhone perhaps, but really whether I have to look for a couple of games in a hill of shit or a mountain of shit really doesn't matter much. Without going on reviews (or reputation of the developer) the platform will not give you a very good experience, and if you go on those the amount of shit really doesn't matter.

They're legal, as are modchips in some other countries, but it doesn't stop Nintendo or anyone else from deploying updates that cripple hardware that legally has modchips or whatever. This law isn't really a solution unless it compels Nintendo or any other console manufacturers from treating customers with modchips or whatever differently.

This is a rather dangerous precedent. A completely open system would eliminate any need for licensing which is the console manufacturers bread and butter. Most consoles at least in the first couple years sell at a significantly subsidized loss. The PS3 for instance was broken down by isupply shortly after release and was determined to cost around $800 to manufacture, its alot cheaper now as parts and components have come down in price but still supposedly sells at a small loss. How many console manufacturers are going to want to sustain a product model with no clear way to make a profit? If they changed the model to something more like the computer industry will consumers be able to accept at $1000 gaming device?

Homebrew is great, but for the vast majority its just an excuse for piracy. If homebrew were the be all end all...the gp32 would be the top selling handheld in existence rather than a platform no one outside the geek community has heard of. So far no attempts at a truly open console have been successful. I havent seen people beating down the doors to own a Pandora or Evo yet, and if the past is any indication they will never amount to more than an interesting footnote in gaming history.

If anything the only thing that will happen if this holds up is consoles will move even further towards a physical media-less system. Downloads only will eventually replace disks and cartridges eventually being replaced by streaming services like OnLive as manufacturers and developers try to maintain some semblance of control. In the end the "everything should be open" crowd might win but the result would be that we all loose.

Nintendo has always sold their hardware with a profit unlike the competition so you can't say it can't be done. The problem is that no one has done it well. Even an open platform like the PC, isn't all that great and that's with backing from numerous large hardware companies and Microsoft.

The fact is 99.99% of the people using them are doing so for piracy. Just like anything else, people aren't interested in the little guy's efforts. They're interested in pirating the big name popular stuff. This is why, despite how easy it is to discover new and legal music, most people are downloading shit from Beyonce and Brittany Spears.

Secondly, saying people should have free access to develop on the system, like a PC, ignore the fact that PC gaming is dying. Part of the reason for this is piracy and part of this is because anyone can do anything on it and we receive a glut of half baked titles that just plan suck or won't be any good until they're patched.

I know the pre-Nintendo days of console gaming had some decent games but forgetting the rose tinted glasses, there was a glut of utter shit out there and that sank console gaming (just as it's killing real PC gaming).

Bill Gates was so certain he could beat consoles with PCs but I think MS realised it was working against them to have a platform where any numbnuts can release something and the decided to give in and go down the console route.

It would be nice to have freedom and in an ideal world the PC would be on top. It would have an excellent wide spread system to promote good games from people while allowing people, if they so choose, get onto Google and hunt down the rubbish as well. There were decent sites, even ages ago (like Happy Puppy) that helped find good games but I don't think, like the games, there were too many shit sites.